When Will We Be Able to Openly Carry a Firearm in the 9th Circuit?

Well, it is already legal for you to openly carry a firearm in most of the 9th circuit except California, Hawaii and a city here and there. For that matter, Florida, Illinois, and the District of Columbia (which are outside of the 9th circuit) are the only states with flat bans on openly carrying firearms in public, hunting, target shooting and (in Florida) fishing notwithstanding.

Some states have various restrictions, such as Oklahoma, which include the requirement for a license to openly carry a handgun but those licenses are sometimes only available to residents, as in Oklahoma, or to everyone, as in Texas. New York bans the Open Carry of handguns but not long guns but allows New York City to enact its own long-gun Open Carry ban, so no Open Carry in New York City. Maryland and New Jersey don’t ban the Open Carry of long guns but allow local governments to enact their own bans so no Open Carry of a long gun in Baltimore, or pretty much anywhere in New Jersey. Maryland and New Jersey require a license to carry a handgun openly or concealed but don’t issue very many licenses because they require that the applicant show a good reason beyond a general desire to carry a handgun for self-defense.

Which brings us to the recent 9th circuit court of appeals decision in Young v. Hawaii. It took ten years and a month, nearly to the day, for the 9th circuit court of appeals to discover what the United States Supreme Court told us in its landmark decision on the Second Amendment, District of Columbia v. Heller way back in June of 2008. The Heller decision told us that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a Second Amendment right. Two years later, in McDonald v. Chicago, the Supreme Court held that the Second Amendment right defined in Heller applies to all state and local governments.

This long delay isn’t entirely the fault of the judges in this circuit. Mostly, but not entirely.

The problem is that legislatures are free to enact unconstitutional laws, police are allowed to make arrests for violating unconstitutional laws, prosecutors are free to prosecute violators of unconstitutional laws, and judges are free to allow people to be convicted, fined and imprisoned for violating unconstitutional laws.

It was not always this way. Unfortunately, in the 1960s the US Supreme Court gave qualified immunity to police, and in the 1970s gave absolute immunity to prosecutors and judges.

The only way to get around their immunity is for someone to successfully bring a lawsuit which results in the unconstitutional law being overturned. Once the law is overturned, these folks no longer get to hide behind their court invented immunity. Most states no longer allow private criminal prosecutions but they can be sued for monetary damages should they enforce a law which has been overturned and, of course, they could be held in contempt of court. They know this and so an injunction, or even a declaration, is worth far more than its weight in gold.

The problem is that Federal judges cannot overturn laws on their own. Somebody has to bring a lawsuit challenging a law for it to be overturned.

California enacted a ban on openly carrying a loaded firearm in public for the purpose of self-defense in 1967. The NRA helped write that law and since April of 2010, the NRA has been in Federal court arguing to uphold that ban.

The NRA is not alone. The NRA’s official state organization, the California Rifle and Pistol Association, is the plaintiff representing the NRA in its California lawsuits. The Second Amendment Foundation (SAF) in conjunction with the CalGuns Foundation filed a separate lawsuit which also sought to uphold California’s Open Carry bans. The Gun Owners of America/California and pretty much every so-called gun-rights group filed briefs in support of their lawsuits opposing Open Carry.

I am the first and only person challenging California’s Open Carry bans. The NRA will tell you that it filed a lawsuit challenging California’s Open Carry bans in 2016 but what they won’t tell you is that they aren’t challenging California’s Open Carry bans. They mention the bans in their lawsuit but none of the plaintiffs have standing to challenge the bans because they refused to articulate a plan, let alone a concrete plan, to violate the bans. Incredibly, three of the plaintiffs, including the lead plaintiff, disavowed any desire to openly carry a firearm anywhere, let alone in violation of California’s Open Carry bans.

The NRA argues that states can ban Open Carry in favor of concealed carry and since California has banned Open Carry they are entitled to concealed carry permits.

The NRA made that very same argument in its Peruta v. San Diego concealed carry lawsuit which lost in the 9th circuit court of appeals. The Supreme Court denied the NRA’s cert petition.

Mr. Young did not challenge Hawaii’s licensing law nor did he explicitly challenge Hawaii’s de facto Open Carry ban (Hawaii law does not prohibit him from obtaining a license, the police chief denied him a license). Mr. Young asked for a license to carry a handgun openly or concealed. He didn’t care which one he got, he was denied a permit to carry openly or concealed.

This was very fortunate for Mr. Young and will be for me as well in my California Open Carry lawsuit if the Young v. Hawaii decision stands.

There have been a Baker’s Dozen or more of lawsuits that I know of which were filed in the wake of the Heller decision. All of them sought concealed carry permits. All of them lost because contrary to the claims the so-called gun-rights lawyers made in court, the US Supreme Court did not say that states can ban Open Carry in favor of concealed carry. The Supreme Court did not say that states can choose between Open and concealed carry.

The Supreme Court said that concealed carry is not a Second Amendment right.

The Heller decision was not the first Supreme Court decision to say this. In 1897 the Supreme Court said that concealed carry is not a Second Amendment right and state courts have been saying that concealed carry is not a right for nearly 200 years.

Like it or not, Open Carry is and always has been the Second Amendment right.

I filed my California Open Carry lawsuit in November of 2011. Mr. Young filed his lawsuit in June of 2012. For a variety of reasons, including pure luck, Mr. Young’s appeal was argued and submitted for a decision three days before mine.

The 9th circuit court of appeals has a judge-made rule that unless a prior decision conflicts with a Supreme Court decision or its holding was made in passing and without serious consideration then subsequent three-judge panels of the 9th circuit court of appeals are bound by prior three-judge panel decisions until that prior decision is overturned by an en banc panel of eleven judges of the 9th circuit court of appeals, reversed by the US Supreme Court, or a subsequent decision of the Supreme Court casts doubt on that prior decision.

And so 12 days after I argued my appeal (the first time in over 20 years a non-lawyer representing himself was allowed to participate in oral argument) the submission of my appeal for a decision was vacated pending a decision in Young v. Hawaii.

The decision in Young v. Hawaii was published on July 24, 2018, at 10:00 AM. My appeal is now once again submitted for a decision. Moreover, the decision in my appeal will bind subsequent three-judge panels of the 9th circuit court of appeals as I just described.

On its face, the Young v. Hawaii decision entails that I win my multi-faceted Second Amendment claim and, by the State of California’s concession during my oral argument, I win my Fourth Amendment claim as well. Open Carry will be restored to California and the police will not be given the unbridled discretion to stop you to see if you are violating a law merely because you are openly carrying a firearm. Nor will the police be allowed to arrest you merely for asserting your Fourth Amendment right.

Mr. Young is not an attorney. He wrote his lawsuit without an attorney and represented himself in the district court. Because of defects in his complaint, he will not immediately get a license to openly carry a handgun in Hawaii. If his 9th circuit decision stands then once the Mandate in his appeal is issued his case will return to the district court for further proceedings. This is not a criticism of Mr. Young. The courts have laid out a vast minefield designed to keep unconstitutional laws in place.

A couple of those defects are that Mr. Young did not challenge the Hawaii license requirement. And, on appeal, “Young[‘s attorney did] not address the additional limitation in section [HRS] 134-9 providing that an open carry license may only be granted “[w]here the urgency or the need has been sufficiently indicated.”

And so there will be additional proceedings in the district court once the Mandate has issued in his case should the Young v. Hawaii decision stand.

Or the Hawaii police chief could simply give Mr. Young a license to carry a handgun, openly or concealed, and Mr. Young’s lawsuit becomes moot (it goes away). Anyone else in Hawaii who wants a handgun carry license would have to file a separate lawsuit should they apply for a handgun Open Carry license and be denied the license.

I suspect that the Hawaii attorney representing the chief of police does not know this given his abysmal performance in oral argument. We can only hope that the arrogance of the left prevails over wisdom and an appeal is filed and/or the appeal is reheard en banc and the Supreme Court grants cert.

The District of Columbia was faced with the same predicament in December of 2015 when it lost an appeal involving the carrying of handguns in public. The District was pressured by other states such as California, Maryland, New York and New Jersey not to file an appeal to the Supreme Court because a decision by the Supreme Court could knock down bans on the carrying of firearms nationwide.

Given that the Hawaii Attorney General has already said that he is going to urge the Hawaii chief of police to file an appeal (the State of Hawaii can’t file an appeal) the pressure is now on the Hawaii Police Chief.

Fortunately, I knew what I was doing when I filed my complaint in my California Open Carry lawsuit. Forty years ago, I studied law in college and spent fourteen months studying the law again before filing my lawsuit.

Not that I had planned on representing myself. I had not even intended in being a plaintiff in my lawsuit. Why I wound up representing myself both in the district court and on appeal is a topic for another day but lack of money and the inability to find a competent attorney willing to challenge California’s Open Carry bans were significant factors.

Suffice it to say, there are no defects in either my Complaint or in my appellate briefs, particularly my opening brief which is the brief by which one wins or loses his appeal.

I did challenge California’s licensing laws as-applied to Open Carry but that challenge was secondary. My primary challenge is to California’s Loaded and Unloaded Open Carry bans. I gave the court of appeals two options when it comes to licensing. First, I challenge the requirement that one have a license to openly carry a handgun for self-defense. In fact, no such license exists in California if one resides in a county with a population of 200,000 or more people. The US Supreme Court has told the lower courts that facially invalidating an unconstitutional law is preferable than a piecemeal invalidation because when a court engages in piecemeal invalidation it acts as a legislature, which is not permissible.

The US Supreme Court has also said that when a license is offered, and even if that license is not required to exercise a fundamental right (i.e., marriage) then the state cannot deny a license. The argument I made in regards to licensing is that the court can either strike down California’s license laws in their entirety but if they don’t then they must: 1) strike down the geographic prohibitions on the license, strike down the “good cause,” and “good moral character,” requirements and all of the other ancillary statutes related to the licenses as they apply to Open Carry licenses.

And so, the three-judge panel assigned to my case can invalidate California’s two handgun licensing laws for both open and concealed carry, or it can make California handgun Open Carry licenses “shall issue.” As licensing is an alternative challenge, the court cannot escape ruling on the constitutionality of California’s Open Carry bans.

And since California’s Open Carry bans are just that, statutory bans and not a policy choice of some police chief or county sheriff, they will be overturned if the Young v. Hawaii decision stands.

The Young v. Hawaii defendants have 14 days from July 24, 2018, to file a petition for rehearing/rehearing en banc in the 9th circuit court of appeals (or a motion for an extension of time). Likewise, they have 90 days to file their cert petition with the Supreme Court. If the Young v. Hawaii appeal is reheard before an en banc panel of eleven judges then it will likely be two years before we have an en banc decision.

Two years from now we will have President Trump’s replacements on the 9th circuit court of appeals and, hopefully, one or more Supreme Court justices from the left replaced.

If the Young v. Hawaii decision is reversed en banc then I likely lose my Second Amendment claim because the three-judge panel assigned to my appeal is bound by the en banc decision in Young v. Hawaii. I will then file my en banc petition before a very different set of 9th circuit judges than would be deciding Mr. Young’s appeal if his appeal is taken en banc now. And should my en banc petition be denied and should I have to file a cert petition with SCOTUS, I may have an even better lineup of Supreme Court justices then than we have now.

In closing, I will say that I read the Young v. Hawaii decision with some amusement, and great satisfaction, given that Mr. Young’s three-judge panel of judges adopted the argument I made in my briefs and oral argument in my California Open Carry lawsuit.

My argument was, and is, that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a right and can, therefore, be banned. Not because I say so but because the US Supreme Court conducted an in-depth historical analysis of the Second Amendment in the Heller case and came to that conclusion.

In short, my argument is that the 9th circuit court of appeals is bound by the Heller decision and the McDonald decision which applied the Heller decision’s definition of the Second Amendment right to the states. But if the court refuses to adopt the historical analysis conducted in Heller and McDonald and choose instead to engage in judicial interest balancing then strict scrutiny applies to my case because the laws I challenge are bans AND the Open Carry bans fail any level of scrutiny, including rational basis review, for the reasons I gave in my opening brief on appeal.

Mr. Young’s attorney had argued on appeal that states can choose between Open and Concealed carry but cannot ban both. The three-judge panel assigned to Mr. Young’s appeal disagreed with his argument in its decision.

I was particularly pleased to read legal arguments I made, and the cases I cited, in my briefs and other filings with the court repeated in the Young v. Hawaii decision.

The very same arguments, the very same citations. Moreover, the Young v. Hawaii decision reads as if it were directed at the three-judge panel assigned to my appeal.

It’s nice to know that someone read my briefs.

The short answer (I know, too late) to the question “So, When will we be able to Openly Carry a Firearm in the 9th Circuit?” is, in most places for most people, “Now.”

For people in California, the answer is when I win my appeal, Nichols v. Brown, and the Mandate is issued in my appeal and that depends upon when the Mandate is issued in the Young v. Hawaii appeal and the Mandate in that case won’t issue unless the petition for an en banc rehearing or a cert petition to the US Supreme Court is denied.

Charles Nichols is a proponent of open carry. In 2011, he filed a Federal Civil Rights lawsuit seeking to overturn California’s 1967 ban on openly carrying loaded firearms in public for the purpose of lawful self-defense. Oral argument in his case took place on February 15, 2018, before a three-judge panel of the 9th circuit court of appeals. Charles follows court cases relating to The Second Amendment and tells us what they really mean instead of what reporters, who have never read the decisions in the cases, say they mean.